The National Affairs Desk of Glorious Noise

There's been some debate about the legality of the NSA's record tracking program. Instead of relying on the opinion of hapless bloggers, why not review the law yourself? POLJUNK has the text of section 222 of the Federal Communications Act of 1934 (amended in 1996) for your perusal (link goes to entire text of the act, a 333 page PDF). In it, you'll find exactly how telecommuncations companies can use or divulge personal information about their customers and the mandate that compels them to protect that information. This act is exactly why government agencies are required to obtain a warrant, issued only after probable cause has been established.

Special nod to Dr. Cornel West who mentioned this section of the act on last Friday's Real Time with Bill Maher.

SEC. 222. [47 U.S.C. 222] PRIVACY OF CUSTOMER INFORMATION.
(a) IN GENERAL.--Every telecommunications carrier has a duty to protect
the confidentiality of proprietary information of, and relating to, other
telecommunication carriers, equipment manufacturers, and customers, including
telecommunication carriers reselling telecommunications services provided by a
telecommunications carrier.
(b) CONFIDENTIALITY OF CARRIER INFORMATION.--A telecommunications
carrier that receives or obtains proprietary information from another carrier for
purposes of providing any telecommunications service shall use such information
only for such purpose, and shall not use such information for its own marketing
efforts.
(c) CONFIDENTIALITY OF CUSTOMER PROPRIETARY NETWORK
INFORMATION.--
(1) PRIVACY REQUIREMENTS FOR TELECOMMUNICATIONS
CARRIERS.--Except as required by law or with the approval of the
customer, a telecommunications carrier that receives or obtains customer
proprietary network information by virtue of its provision of a
telecommunications service shall only use, disclose, or permit access to
individually identifiable customer proprietary network information in its
provision of (A) the telecommunications service from which such
information is derived, or (B) services necessary to, or used in, the
provision of such telecommunications service, including the publishing of
directories.
(2) DISCLOSURE ON REQUEST BY CUSTOMERS.--A
telecommunications carrier shall disclose customer proprietary network
information, upon affirmative written request by the customer, to any
person designated by the customer.
(3) AGGREGATE CUSTOMER INFORMATION.--A telecommunications
carrier that receives or obtains customer proprietary network information
by virtue of its provision of a telecommunications service may use,
disclose, or permit access to aggregate customer information other than for
the purposes described in paragraph (1). A local exchange carrier may use,
Communications Act of 1934
53
disclose, or permit access to aggregate customer information other than for
purposes described in paragraph (1) only if it provides such aggregate
information to other carriers or persons on reasonable and
nondiscriminatory terms and conditions upon reasonable request therefor.
(d) EXCEPTIONS.--Nothing in this section prohibits a telecommunications
carrier from using, disclosing, or permitting access to customer proprietary
network information obtained from its customers, either directly or indirectly
through its agents--
(1) to initiate, render, bill, and collect for telecommunications
services;
(2) to protect the rights or property of the carrier, or to protect
users of those services and other carriers from fraudulent, abusive, or
unlawful use of, or subscription to, such services; or
(3) to provide any inbound telemarketing, referral, or administrative
services to the customer for the duration of the call, if such call was
initiated by the customer and the customer approves of the use of such
information to provide such service.
(e) SUBSCRIBER LIST INFORMATION.--Notwithstanding subsections (b), (c),
and (d), a telecommunications carrier that provides telephone exchange service
shall provide subscriber list information gathered in its capacity as a provider of
such service on a timely and unbundled basis, under nondiscriminatory and
reasonable rates, terms, and conditions, to any person upon request for the
purpose of publishing directories in any format.
(f) DEFINITIONS.--As used in this section:
(1) CUSTOMER PROPRIETARY NETWORK INFORMATION.--The term
''customer proprietary network information'' means--
(A) information that relates to the quantity, technical
configuration, type, destination, and amount of use of a
telecommunications service subscribed to by any customer of a
telecommunications carrier, and that is made available to the carrier
by the customer solely by virtue of the carrier-customer
relationship; and
(B) information contained in the bills pertaining to telephone
exchange service or telephone toll service received by a customer of
a carrier;
except that such term does not include subscriber list information.
(2) AGGREGATE INFORMATION.--The term ''aggregate customer
information'' means collective data that relates to a group or category of
services or customers, from which individual customer identities and
characteristics have been removed.
(3) SUBSCRIBER LIST INFORMATION.--The term ''subscriber list
information'' means any information--
Communications Act of 1934
54
(A) identifying the listed names of subscribers of a carrier
and such subscribers' telephone numbers, addresses, or primary
advertising classifications (as such classifications are assigned at the
time of the establishment of such service), or any combination of
such listed names, numbers, addresses, or classifications; and
(B) that the carrier or an affiliate has published, caused to be
published, or accepted for publication in any directory format.

Notwithstanding any other law, providers of wire or
electronic communication service, their officers, employees, and
agents, landlords, custodians, or other persons, are authorized
to provide information, facilities, or technical assistance to
persons authorized by law to intercept wire, oral, or electronic
communications or to conduct electronic surveillance, as defined
in section 101 of the Foreign Intelligence Surveillance Act of
1978, if such provider, its officers, employees, or agents,
landlord, custodian, or other specified person, has been provided
with--

(A) a court order directing such assistance signed by
the authorizing judge, or

(B) a certification in writing by a person specified in
section 2518(7) of this title or the Attorney General of the
United States that no warrant or court order is required by law...

Furthermore, the Electronic Frontier Foundation just won a ruling that it can use critical evidence in its class action suit against AT&T for its illegal disclosure to the NSA of phone and Internet records: http://www.eff.org/news/archives/2006_05.php#004681

To continue to parsing the language: Note how the word "intercept" is used. There is no interception of the communication (at least none that is being contested that I am aware of); this is a matter of providing a list of calls sent and received. Based on semiotics, there are just sender-receiver in that scenario, no message. (At this rate, I think that I'm going to get drafted for the NSA legal team.)

Parsing words is what we do, but I still have to ask: If this is type of data mining is within the law, then why was Qwest told the NSA would not seek a warrant or written approval from the Attorney General verifying as much; and why do local, state and federal prosecutors need to seek warrants for this information in criminal trials?

Makes me wonder if it's the phone company who has the right to refuse cooperation unless there's a warrant... Does the data (i.e., phone calling records) belong to the phone companies, or to us? Maybe Qwest was just defending their rights, not their customers'.

Who knows? We probably never will. Unless, of course, this goes to trial...